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2002 DIGILAW 689 (KER)

Sivasankaran Achary v. Sreekanth

2002-10-23

K.PADMANABHAN NAIR

body2002
Judgment :- 1. The first defendant in a suit for money filed by the first respondent is the revision petitioner. The Civil Revision Petition is filed against an order passed by the court below refusing to set aside an order holding that the suit be heard ex parte. 2. The revision petitioner appeared before the court below on 8.1.2002 in response to the summons received by him and prayed for time for filing the written statement. The case was adjourned for filing the written statement to 8.2.2002 and on subsequent occasions. Finally the suit was posted to 13.8.2002 for filing written statement. On that day the revision petitioner did not appear. The learned Sub Judge set the revision petitioner ex parte and posted the case for ex parte evidence on 2.9.2002. On 2.9.2002, the petitioner filed I.A. No. 768 of 2002 for setting aside the ex parte order and permitting him to file the written statement. The I.A. was dismissed by the impugned order. That order is under challenge in this Civil Revision Petition. 3. The learned counsel appearing for the revision petitioner submitted that the view taken by the learned Sub Judge that he has no power to grant time beyond 90 days from the date of receipt of summons in view of the amendment to the C.P.C. is illegal and unsustainable. It is argued that the petition filed was one under O. IX, R.6 and not under O.V, R.1 or under O. VIII, R.1 and the petition filed under O. IX, R.6 cannot be dismissed in view of the provisions contained in O.V, R.1 of the Code of Civil Procedure. It is also argued that the learned Sub Judge failed to note that the provisions of O.V, R.1 and O. VIII, R.1 are not applicable to cases instituted prior to 1.7.2002 in view of the provisions contained in Ss.320) and (1) of the C.P.C. (Amendment) Act, 1999 (Act 46 of 1999) and substituted by S.15(b)(ii) and (iii) of C.P.C. (Amendment) Act, 2002 (Act 22 of 2002). 4. The order passed by the court below reads as follows: "It is seen that the Vakalath was filed on 8.1.2002 and the written statement was not filed till 13.8.2002. As per the new amendment the court has no power to grant time beyond 90 days from the receipt of summons. 4. The order passed by the court below reads as follows: "It is seen that the Vakalath was filed on 8.1.2002 and the written statement was not filed till 13.8.2002. As per the new amendment the court has no power to grant time beyond 90 days from the receipt of summons. Hence this petition is dismissed." The order passed by the court below is vague. Apart from stating that'as per the new amendment' the court below has not specified amendment to which section or rule which he had considered in the order challenged. It is clear that the court below has not even bothered to consider the relevant provisions of law under which the application is filed. 5. The suit was filed in the year 2001. Summons was served on the revision petitioner and he appeared on 8.1.2002. The suit was adjourned to 18.2.2002, 22.6.2002 and 30.7.2002 for filing the written statement. Thereafter it was posted to 13.8.2002 for filing written statement and on that day the revision petitioner was absent and the plaintiff alone was present. The learned Subordinate Judge set the revision petitioner ex parte and posted the case for ex parte evidence to 3.9.2002. On 2.9.2002 the revision petitioner filed a petition stating that due to an inadvertent mistake made by the Clerk in noting the posting date, the defendant did not appear on 13.8.2002. According to the revision petitioner, the posting date was noted by the Clerk as 28.8.2002 and on that day, the defendant came to the court. Since the case was not called, the counsel made enquiries and came to know that the suit was already taken up on 13.8.2002 and posted for ex parte evidence. I do not find any reason to disbelieve the reasons stated by the defendant for his non-appearance. O. IX, R.6(1)(a) provides that when the summons is properly served and the defendant is not present, the suit be heard ex parte. O. IX, R.7 C.P.C. provides that in such cases if the defendant appears on the day of adjourned hearing and assigns good cause for non-appearance, he may be heard in answer to the suit as if he had appeared on the day fixed for his appearance. I hold that the defendant has assigned good cause for his non-appearance on 13.8.2002. O. IX, R.7 C.P.C. provides that in such cases if the defendant appears on the day of adjourned hearing and assigns good cause for non-appearance, he may be heard in answer to the suit as if he had appeared on the day fixed for his appearance. I hold that the defendant has assigned good cause for his non-appearance on 13.8.2002. The learned Sub Judge ought to have set aside the order passed on 13.8.2002 that the case be heard ex parte and posting the case to 3.9.2002 ought to have been set aside. 6. When the suit is posted for appearance of the defendant and on that day, the plaintiff alone appears then the court has to follow the procedure prescribed under R.6 of O. IX. The proceedings of the court below shows that the defendant who was served with summons failed to appear on a day on which the case was posted for filing the written statement. In view of the provisions contained in O.IX, R.6 the court below posted the case for ex parte evidence and on that day, the defendant appeared and assigned good cause for his previous non-appearance. That is a case squarely covered by the provisions of R.6 and 7 of 0. IX and not under ON, R.1 or O.VIII, R.1 of C.P.C. 7. The reasoning of the learned Sub Judge that since 90 days has elapsed the court has no power to grant adjournment is also wrong. The suit was filed in the year 2001. The defendant appeared on 8.1.2002. The provisions contained in ON, R.1 were amended by S.15 of Act 46 of 1999.O.VIII, R.1 was also amended by S.18 of that Act. It came into force with effect from 1.7.2002. S.32 is the section which deals with repeal and savings. S.320) reads as follows: "the provisions of R.1, 2, 6, 7, 9, 9-A,19-A, 21, 24 and 25 of O. V of the First Schedule as amended or, as the case may be, inserted or omitted by S.15 of this Act shall not apply to any summons issued immediately before the commencement of S.15;" S. 32(1) reads as follows: "the provisions of R.1 and 1-A of O. VII of the First Schedule, as substituted or inserted by S.18 of this Act, shall not apply to a written statement filed and presented before the Court immediately before the commencement of S.18". The above two sub-sections were further amended by Code of Civil Procedure (Amendment) Act 22 of 2002. S.7 of Act 22/2002 amended sub-r. (1) of ON and S.9 of the Act further amended sub-r. (1) of O. VIII. As per S.15(b)(ii) and (iii) of Act 22 of 2002 sub-s. 0) and (1) of S.32(2) of Act 46 of 1999 were also substituted. So now S.320) reads as follows: "0) the provisions of R.1, 2, 6, 7, 9, 9A, 19A, 21, 24 and 25 of O. V of the First Schedule as amended or, as the case may be, substituted or omitted by S.15 of this Act, and by S.6 of the Code of Civil Procedure (Amendment) Act, 2002, shall not apply to in respect of any proceedings pending before the commencement of S.15 of this Act and S.6 of the Code of Civil Procedure (Amendment) Act, 2002, shall not apply to in respect of any proceedings pending before the commencement of S.15 of this Act and S.6 of the Code of Civil Procedure (Amendment) Act, 2002. S.15(b)(iv) for Cl. (1), the following clause shall be substituted, namely:-S. 32(1) now reads as follows: (1) the provisions of R.1, 1A, 8A, 9 and 10 of the O. VIII of the First Schedule as substituted or, as the case may be, inserted or omitted by S.18 of this Act and by S.9 of the Code of Civil Procedure (Amendment) Act, 2002, shall not apply to a written statement filed and presented before the commencement of S.18 of this Act and S.9 of the Code of Civil Procedure (Amendment) Act, 2002." It is true that a reading of S.32(1) now substituted by the Amending Act 22 of 2002 is likely to give an impression that in cases instituted prior to 1.7.2002 also the amended provisions of O. VIII, R.1 is applicable with effect from 1.7.2002 because the wording used is the provisions shall not apply to a written statement'filed and presented' before the commencement of the amendment Act. It is argued that in view of the provisions contained in S.32(1) written statement has to be filed within 30 days or 90 days as the case may be. But, O.VIII, R.1 is to be read along with O. V, R.1. It is argued that in view of the provisions contained in S.32(1) written statement has to be filed within 30 days or 90 days as the case may be. But, O.VIII, R.1 is to be read along with O. V, R.1. It is to be noted that the provisions contained in O. VIII, R.1 is merely procedure and subordinate to the provisions contained in O. V, R.1 of the Code of Civil Procedure. The Court gets jurisdiction over the defendant on service of summons only. 8. The provisions of ON, R.1 makes it very clear that summons in a suit instituted prior to 1.7.2002 the Court will have to fix a date for appearance and also further state whether on that day the defendant shall file his written statement. So, if in a given case the defendant is directed to appear and file written statement after four or five months after the commencement of the amended provisions of O. V, R.1 and O.VIII, R.1 of the Code of Civil Procedure he need appear only on the day on which he was asked to appear. But at the same time if the provisions of S.32(1) is strictly construed, that written statement cannot be accepted if it is not filed within 30 days from 1.7.2002. It is well settled position of law that while interpreting a Statute, a construction that will result in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results. It is also well settled position of law that if there is conflict between two provisions in a Statute, the Court must make every effort to make a harmonious construction so that both sections can be reconciled. If two Sections of an Act cannot be reconciled, it cannot be said that the former Section is repealed by the latter. In Institute of Patent Agents v. Lockwood, (1894) AC 347, p. 360 (HL) it was held as follows: "Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best as you may. In Institute of Patent Agents v. Lockwood, (1894) AC 347, p. 360 (HL) it was held as follows: "Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best as you may. If you cannot, you have to determine which is the leading provision, and which the subordinate provision and which must give way to the other." This principle has been followed by the High Court of Australia by holding that "only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language maintaining the unity of the statutory scheme". See Project Blue Sky Inc. v. Australian Broadcasting Authority ((1998) 72 ALJR 841). The principle laid down in Institute of Patent Agents' case (supra), was considered by the Supreme Court in Chief Inspector of Mines v. Karam Chand Thapar (AIR 1961 SC 838, p. 844). In Laxmi Devi v. Mukund Kanwar (AIR 1965 SC 834, p. 838), the Apex Court found that S.2(d) of the Transfer of Property Act shall prevail over S.5 of the same Act. It was held as follows: "The positive provision contained in S.2(d) must prevail over the definition of transfer of property prescribed by S.S. No doubt, the purpose of the definition is to indicate the class of transfers to which the provisions of the Transfer of Property Act are intended to be applied, but a definition of this kind cannot override the clear and positive direction contained in the specific words used by S.2(d). The result of the saving clause enacted by S.2(d) is to emphasise the fact that the provisions of S.57 and those contained in Chap. IV must apply to transfer by operation of law. Such a positive provision cannot be made to yield to what may appear to be the effect of the definition prescribed by S.S, and so, notwithstanding the definition prescribed by S.5 the latter part of S.100 must be deemed to include the auction sales". So, it is necessary to find out which is the prominent rule and which is the subordinate rule. 9. So, it is necessary to find out which is the prominent rule and which is the subordinate rule. 9. The newly substituted O. V, R.1 makes it clear that a summons may be issued to the defendant to appear and answer the claim and file a written statement of defence, if any, within thirty days from the date of service. But, in view of the saving clause contained in S.32(k), the summons to be issued in cases instituted prior to 1.7.2002 is in accordance with the unamended R.1 of O. V, which provides that "the defendant may be asked to appear and answer the claim on a day to be specified therein" (emphasis supplied). The second proviso to O. V, R.1 makes it further clear that a Court may direct the defendant to file his written statement on the date of his appearance. But, in that case a specific entry is to be made in the summons. So, a duty is cast upon the Court to specify the date on which the party should appear before the Court and file his written statement. Going by the wording of the unamended sub-r. (1) of O. V the Court is not expected to state the date of filing of the written statement, but what is required to be stated is the date of appearance in the suit. In R. Gangadharan v. R. Narayanan (AIR 1959 Kerala 169) it was held that the summons should show what claim the defendant is called upon to answer and on what date he is to be heard. If the date mentioned in the summons is a holiday, there is no proper service. Since the provisions contained in the amended R.1, O. V is not applicable to the suit filed prior to 1.7.2002, the defendant on whom such a summons is issued cannot be expected to file a written statement on any day prior to the date mentioned in the summons. So, unless the summons issued in a suit instituted prior to 1.7.2002 the defendant is specifically required to file the written statement within the thirty days from 1.7.2002, he need not file the same within 30 days or 90 days as the case may be. So, unless the summons issued in a suit instituted prior to 1.7.2002 the defendant is specifically required to file the written statement within the thirty days from 1.7.2002, he need not file the same within 30 days or 90 days as the case may be. So, it is evidently clear that the provisions contained in the R.1 of O. V of the Code of Civil Procedure is the leading provision and the provisions contained in O. VIII, R.1 is a subordinate provision. A combined reading of O. V, R.1 and O. VIII, R.1 along with S.320) and (1) of the Amendment Act makes it clear that so far as the suits filed prior to 1.7.2002, the matter is governed by the wording in the summons served on the defendant. A defendant who is asked to appear 4 or 5 months after the commencement of the amended provisions of O.VIII, R.1 of the Code of Civil Procedure is not expected to file the written statement within thirty days from 1.7.2002 and then appear and answer his claim on the date on which is asked to appear as required in the summons. It is quite possible that because of the heavy pendency in many of the subordinate courts in a suit filed prior to 1.7.2002 in the summons issued to the defendant the date specified for his appearance may be a day beyond 6 or 7 months from 1.7.2002. In such cases, it is unreasonable and illegal to expect a defendant to file written statement within 30 days or 90 days, as the case may be. So, I hold that in a suit filed before 1.7.2002 if the summons issued does not specify and require the defendant to file the written statement within thirty days he need only appear on the date specified in the summons and answer the claim. So, the view taken by the learned Subordinate Judge that in view of the amendment he has no power to grant time to a defendant in a suit filed prior to 1.7.2002 and beyond 90 days is illegal and unsustainable and liable to be set aside. In the result, the C.R.P. is allowed. The order passed by the Additional Sub Judge in I.A. No. 768 of 2002 in O.S. No. 258 of 2001 is hereby set aside. I.A. No. 768 of 2002 is allowed. In the result, the C.R.P. is allowed. The order passed by the Additional Sub Judge in I.A. No. 768 of 2002 in O.S. No. 258 of 2001 is hereby set aside. I.A. No. 768 of 2002 is allowed. The order passed by the court below setting the first defendant ex parte is set aside. The petitioner will be given a reasonable time not exceeding 30 days from the date of receipt of the copy of this order to file written statement and thereafter the learned Sub Judge shall dispose of the suit in accordance with law.